The Steel Kiss

Whitmore seemed immune to irony and continued, “You’d appreciate the sticker: Remove infant before folding stroller closed. I’m not making that up. Of course, yes, it’s called strict liability but not absolute. There does have to be a defect. Someone who uses a chain saw to attack a victim, for instance, is an intervening cause. The plaintiff can’t sue the saw manufacturer for an assault like that.

“Now, to our case: The first question is, Whom do we sue? Was there a design or manufacturing flaw in the Midwest Conveyance escalator itself? Or was it in good working order and the mall management company, a cleaning crew or a separate maintenance company was negligent in repairing or maintaining it? Did a worker not latch it closed last time it was opened? Did someone manually open the panel while Mr. Frommer was on it? Did the general contractor who built the mall render the unit dangerous? The subcontractor who installed the escalator? What about component parts manufacturers? What about the mall cleaning staff? Were they working for an independent contractor or employees of the mall? This is where you come in.”

Rhyme was already thinking of how to proceed. “First, I’ll need to have someone inspect the escalator, the controls, the crime scene photos, trace, and—”

“Ah. Now, I must tell you our situation has a slight wrinkle. Well, several wrinkles.”

Rhyme’s brow rose.

Whitmore continued, “Any accident involving an escalator, elevator, moving sidewalk, et cetera, is investigated by the Department of Buildings and the Department of Investigation.”

Rhyme was familiar with the DOI. One of the oldest law enforcement agencies in the country—going back to the early nineteenth century—the division was charged with overseeing government employees, agencies and anyone who contracted or worked with the city. Because he himself was rendered a quad while investigating a crime scene in a subway construction site, the DOI was involved with the investigation into how that accident happened.

Whitmore continued, “We can use the findings in our suit, but—”

“It’ll take months to get their report.”

“Exactly the problem, Mr. Rhyme. Six months, a year more likely. Yes. And we can’t wait that long. Mrs. Frommer will be homeless by then.”

“Wrinkle one. And two?”

“Access to the escalator. It’s being, removed and impounded in a city warehouse, pending investigation by the DOI and DOB.”

Hell, already major evidence contamination, Rhyme thought instinctively.

“Get a subpoena,” he said. This was obvious.

“I can’t at this point. As soon as I file suit—that’ll be within the next few days—I can serve a duces tecum. But a judge will quash it. We won’t get access until DOI and DOB have finished their investigation.”

This was absurd. It was the evidence, possibly the only evidence, in the case and he couldn’t get his hands on it?

Then he remembered: Of course, it’s a civil, not a criminal, matter.

“We can also subpoena design, manufacturing, installation and maintenance records from the possible defendants: the mall, the manufacturer—Midwest Conveyance—the cleaning company, anyone else with any connection to the unit. Those we might get copies of but it’ll be a fight. And the motions’ll go back and forth for months before they’re released. Finally, the last wrinkle. I mentioned that Mr. Frommer wasn’t working full-time any longer?”

“I recall. A midlife crisis or some such.”

“That’s correct. He quit a high-pressure corporate position. Lately he worked jobs that he didn’t have to take home at night—deliveryman, telemarketer, order taker in a fast-food restaurant, a shoe salesman at the mall. Most of his time was spent volunteering for charities. Literacy, homelessness, hunger. So for the past few years he’s had minimal income. One of the hardest parts of our case will be convincing a jury that he would have gotten back into the workforce in a job like the one he had.”

“What did he used to do?”

“Before he quit he was director of marketing. Patterson Systems in New Jersey. I looked it up. Very successful company. Number one fuel injector maker in America. And he made solid six figures. Last year his income was forty-three thousand. The jury awards wrongful death damages based on earnings. The defendants’ attorneys will hammer home that, even if their clients are liable, the damages were minimal since he was making basically minimum wage.

“I will be trying to prove that Mr. Frommer was going through a phase. That he was going to get back into a high-paying job. Now, I may not succeed at that. So this is your second task. If you can make the case that the defendant, whoever it or they turn out to be, engaged in wanton or reckless behavior in building the escalator or a component part, or in failing to maintain the device, then we’ll—”

“—add a punitive damage claim. And the jury, which feels bad that they can’t award the widow much by way of future earnings, will compensate with a big punitive award.”